Rais Ahmad And Ors. vs State Of U.P.
2019 Latest Caselaw 5208 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Court No. 1
 
Judgment reserved on 14.05.2019.
 
Judgment delivered on 30.05.2019.
 

 
Criminal Appeal No. 1416 of 1985.
 
Rais Ahmad & another vs. State of U.P.
 
Hon'ble Ramesh Sinha, J.

Hon'ble Dinesh Kumar Singh-I, J.

(Deivered by Hon'ble Ramesh Sinha, J.)

1. The present criminal appeal has been preferred against the judgment and order dated 23.5.1985, passed by IInd Additional Sessions Judge, Allahabad in S.T. No. 354 of 1981 convicting and sentencing the appellant Rais Ahmad to life imprisonment under section 302/34 I.P.C. and appellant Anwar Ahmad @ Nirala to life imprisonment under section 302 I.P.C.

2. The present appeal has been filed by two accused-appellants out of which appellant no. 1 Rais Ahmad died during the pendency of appeal and the appeal on his behalf has already been ordered to be abated by Co-ordinate Bench of this Court vide order dated 1.4.2019 and the present appeal survives with respect to appellant no. 2, namely, Anwar Ahmad @ Nirale only, hence the Court proceeds to adjudicate the aforesaid appeal with respect to the said appellant.

3. The prosecution case in the nutshell is that the informant-P.W. 1 Nabi Ahmad, who is resident of village Boonda, police station Sarai Aquil, Allahabad on 24.2.1981 lodged a written report at police station Sarai Aquil stating that on 23.2.1981 at about 9:30 a.m. at his tubewell a quarrel took place between accused Rais Ahmad and his brother Rizwan Ahmad with respect to a drain (Nali) on account of which the accused started abusing the informant and his brother on which the father of the informant, namely, Ahmad Ullah slapped accused Rais Ahmad twice or thrice and asked him to go away thus the quarrel between them subsided. Accused Anwar Ahmad @ Nirale is the elder brother accused Rai Ahmad. On the date of incident, i.e., on 24.2.1981 Anwar Ahmad @ Nirale came to his house. The accused Rais Ahmad and Anwar Ahmad both armed with lathi and gun respectively arrived at the house of the informant with an intention to commit the murder of the father of the informant started abusing him. The informant came out of his house. Rais had a lathi and Anwar Ahmad had his licensee double barrel gun. The informant's father asked the accused not to abuse but the accused Rais Ahmad exhorted Anwar Ahmad to murder the informant's father. The informant proceeded to save his father. Mohammad Sayeed Ahmad-the village Pradhan, Jafarul Haq, Mushtaq Ahmad, Bhaiya Lal and other also proceeded towards Ahmad Ullah in order to save him but Anwar Ahmad @ Nirale fired shot at him at about 11:30 a.m. causing his instantaneous death. When the witnesses approached, the accused fled away.

4. In pursuance of the written report (Ext. Ka-1), chik F.I.R. (Ext. Ka-2) was prepared at the police station on 24.2.1981 at 12:30 p.m. on the same day by head constable Jeet Bahadur Singh. He registered the case in the G.D. copy of which is Ext. Ka-3 on the record. The Investigating Officer Hari Prasad Singh taken over the investigation and proceeded to the place of occurrence after recording the statement of the informant at police station itself. S.I. Mohan Singh under the supervision of the investigating officer took the dead body of the deceased in his custody and prepared the inquest report and other relevant documents, i.e., Exts. Ka-4 to 9 and thereafter got the dead body sealed and sent it for post mortem examination through Constable Preetam Yadav.

5. The Investigating Officer interrogated Rizwan Ahmad and Mushtaq Ahmad and inspected the spot. He prepared the site plan (Ext. Ka-10). S.I. Mohan Singh recovered cartridges, tiklies etc. and got them sealed. He prepared the memo Ext. Ka-11. The tikli is Ext. 1. The blood stained and plain earth from the spot were also recovered and kept in separate containers Exts. 2 and 3. Memo Ext. Ka.12 was prepared. The blood stained clothes from the dead body were recovered and sealed on the spot. Memo Ext. Ka-13 was prepared. Thereafter the Panchas of the panchayatnama were interrogated. The search for the accused was made but they could not be traced out. The proceedings under section 82 and 83 Cr.P.C. were initiated against the accused and ultimately after conclusion of the investigation, the Investigating Officer submitted charge-sheet Ext. Ka-17 against the accused appellants on 17.5.1981. The case was committed to the Court of Session and the trial court framed charges against the accused-appellants for the offence in question.

6. The accused denied the prosecution case and claimed their trial.

7. In order to prove its case, the prosecution has examined six witnesses, i.e., P.W. 1 Nabi Ahmad-the informant of the case, P.W. 2 Jafaraul Haq, P.W. 3 Rizwan Ahmad, P.W. 4 Constable Preetam Yadav, P.W. 5 Hari Prasad Singh-the Investigating Officer of the case and P.W. 6 Dr. P.S. Pandit, who conducted the post mortem of the deceased.

8. The accused in their statement under section 313 Cr.P.C. have denied the allegations made against them. Anwar Ahmad has vehemently stated that there was no quarrel between his brother and the deceased a day prior to the incident. Mohammad Amin and Syeed Ahmad were real brothers. Elder daughter of Mohammad Amin is married to the accused Anwar Ahmad. Syeed Ahmad has three daughter. His eldest daughter is married to another son of Mohammad Yunus. Mohammad Yunus and Ahmad Ullah (deceased) had litigation about consolidation. The deceased had enmity with several persons. Sohail Ahmad, the nephew of Sayeed Ahmad Pradhan was murdered. Ahmad Ullah was a witness of the prosecution in that case. The accused were convicted. Sayeed Ahmad Pradhan wanted to grab the property of Mohammad Amin. This accused resides in the house of his father-in-law which is disliked by Sayeed Ahmad Pradhan. That is why Sayeed Ahmad Pradhan has got this case launched against the accused.

9. Accused Rais Ahmad has denied the allegations made against him and has vehemently stated that he had been implicated on account of enmity.

10. The accused led no evidence in their defence.

11. P.W. 1 Nabi Ahmad in his deposition before the trial court has stated that the deceased Ahmad Ullah was his father, who was murdered on 24.2.1981 at 11:30 a.m in village Boonda, police station Pipri and at the time of murder he was present there. The murder had taken place at the doors of his house which is near the Mazar. The accused Rais Ahmad and Anwar Ahmad belong to his village. The accused had come at the doors of his house and started abusing them. Rais was armed with lathi and Anwar Ahmad was armed with gun. His father came at the door of the house from the Eastern lane then accused Rais Ahmad exhorted by uttering 'maro sale ko' on which accused Anwar Ahmad moved ahead with his gun and his father also moved few steps back on which the informant raised an alarm to save him and on his alarm Mohammad Sayeed Pradhan and Jafrul Haq came from North Western side and Mushtaq Ahmad and Bhaiya Lal came from the Western side raising alarm and challenging the accused in the meanwhile accused-Anwar Ahmad fired at the deceased with his licensee gun on account of which he died instantaneously. The accused after firing shot had fled away. Thereafter, he wrote a report about the incident. The original report dated 24.2.1981 was shown to the witness and after reading, he proved the same to be written in his hand writing and signature (Ext. Ka-1). He further stated that he had given the said report and copy of the same was also given to him by the Head Moharrir. The place where his father's body was lying blood had fallen on the earth and on his cloth also blood was found. On 23.2.1981 at 9:30 a.m., a quarrel took place between his brother Rizwan Ahmad and accused Rais Ahmad on his private tubewell with respect to a drain (Nali) on which his father slapped accused Rais Ahmad two to four times and made him run away due to the said quarrel his father has been murdered.

12. In his cross examination, the witness has deposed that the name of the father of Sayeed is Maulvi Salam Ullah. Sayeed is the witness of this case. He does not know Athar. The nephew of Sayeed Pradhan, namely, Suhail was murder 8-10 years prior. In the said case, his father was prosecution witness. The accused in the said case was convicted and sentenced. In the said case some accused were of his village and some were outsiders. Mohammad Yunus belong to his village. There was a litigation going on between the father of the said witness and Mohammad Yunus in which Mohammad Yunus had lost. He denied that in fact his property belong to Mohammad Yunus. He further denied that after loosing the said case, the relationship between his father and Mohammad Yunus were not cordial. He further denied that Mohammad Yunus was regularly threatening his father and after the death of his father Yunus had filed a case in which the compromise took place and after the compromise some of the property was given to Yunus. He denied that case was got filed by Yunus and thereafter he entered into a compromise with him as he apprehended that Yunus may not got him murdered. There was a litigation going on between his father and one Baijnath with respect to some trees. There was no scuffle (Marpeet) between his father and Baijnath or any incident had taken place. In his village there is Mahboob Ahmad and Mahboob Ullah. Mahboob Ullah has initiated a case against his father in which witness is also an accused.

13. Sayeed Pradhan is the Chachiya Sasur of accused Anwar Ahmad. The name of the elder brother of Sayeed Pradhan is Mohammad Amin @ Kallu. Mohammad Amin had only two daughters. The elder daughter was married with Anwar Ahmad. After the death of Mohammad Amin, Sayeed Ahmad Pradhan is taking care of his daughters. Anwar Ahmad used to live in the house of his father-in-law. Anwar Ahmad has not got any property from his father-in-law. Anwar Ahmad is resident of his village. He denied that Sayeed Pradhan in collusion with the witnesses lodged a false report against Anwar Ahmad as the property which was received by Sayeed by his father-in-law, he had grabbed the same. Yunus is the Samdhi of Mohammad Sayeed. Yunus is the same person with whom his father had a litigation of consolidation case. Mushtaq Ahmad, who is the eye witness in the present case, is the maternal cousin of Yunus. He stated that he does not know whether the witness Zafrul is the relative of Sayeed Pradhan or not. He does not remember that in a case under section 107/116, the witness Bhaiya Lal and Sayeed Pradhan were on one side. Witness Bhaiya Lal used to cultivate the field of Sayeed Pradhan. In village Barethi a murder had taken place in which Sayeed Pradhan, Bhaiya Lal and Zafrul are co-accused. There was a litigation of consolidation between his father and one Achche Miyan. The house of the witness Bhaiya Lal is at a distance of one and half kms. from his house and not a distance of 10 kms. The house of Bhaiya Lal is not in his village. He used to come to his village to cultivate the field of Sayeed Pradhan. There is no field of witness Bhaiya Lal in his village. The witness stated that his tubewell is at a distance of one kilometer of the abadi of his village. His brother Rizwan is aged about 20 years and the accused Rais Ahmad is aged about 32 years. The field of Rais Ahmad is at a distance of 2-3 bighas of his tubewell and upto his field from his tubewell a drain (Kachchi Nali) which is since 1973-74. Accused Rais Ahmad used to take water from his tubewell frequently but after the murder it has been stopped. There is 4-6 bighas field of Rais Ahmad. Except the same there is no field of Rais Ahmad near his tubewell. Rais used to irrigate his all said fields from the tubewell of this witness. Till the day of incident, Rais Ahmad and his brother Anwar Ahmad, the said accused had not constructed any other lane except the lane which was made earlier. He did not go to the tubewell at the time of Marpeet or thereafter. The house of the accused is 200 paces from his house. When he was present in the evening, wife of Rais Ahmad came to complaint about the incident to his mother.

14. In his cross examination, the witness has stated that when there was quarrel between his father and the brother of Anwar Ahmad at the tubewell then the said witness was not present. Mushtaq Ahmad do business at Gwalior for the last 20 years but used to live at both places, i.e., at Gwalior and in the village but his family was living at Gwalior for the last 8 years. The accused were standing at a distance of 5 paces from his father. This witness has stated that he was standing on the Eastern side of his house at 5-7 paces away from where he saw his father being murdered. He stated that he was standing at the corner of the house of one Qadeer at South-Eastern at a distance of 2-3 paces. There was a difference of 35 paces between him and his father. The accused had reached there and took 2-3 minutes to commit the murder of his father. His father was shot by Anwar Ahmad from a distance of 10 paces. Where his father received gun shot injury there is door of Goswar at a distance of 10-12-14 paces. Anwar has shot at his father just from the Western side of the door of his Goswar. He returned from the police station to the place of occurrence along with Station Officer. He had showed the place to the Station Officer from where he saw the incident and also the place from where the accused Anwar had Shot at his father. Prior to shooting, no person from the house of Ghulam Hussain, Bashir Ahmad, Sri Moosa, Sri Yunus and Sri Qadeer was present. The houses of all the said persons is near the place of occurrence. He denied that the house of Yunus was being construction and the labourers were working at the time of incident. After the murder Yunus has arrived but before that the accused had fled away and when they enquire about the incident, then he narrated the same to them. After the murder of his father, he did not at any point of time became unconscious. After 10-12 minutes he proceeded on bicycle to the police station. He reached Tilhapur turning which is at a distance of one mile in ten minutes. He kept the bicycle over there and within 5-7 minutes he got tempo by which he reached the police station within half an hour after the murder. In those days, tempo used to ply till Tilhapur turning and it went to Sarai Aquil though there was restriction for plying of tempo. He had kept his bicycle at the house of Jawahir Baniya. After submission of written report at police station his signatures were taken on 1-2 papers. Both the signatures were taken on a register. He remained at the police station for about 45 minutes. The Investigating Officer took his statement at the police station. After he returned from police station his father's dead body was lying at the same place where he had fallen but it was found on a cot as his mother had got his dead body kept on a cot in his absence. He further stated that only one fire was shot at his father in his presence. On the day of incident, right from the morning till the murder he remained present at his house. On that day, his father had gone at 7 a.m. in the morning from the house towards his agricultural field and while he was returning, he was murdered. His father before going to the field had only taken the tea. His father used to go the field in the morning at 7:30 a.m. after taking tea and return at about 11:30 a.m. of 12:00 p.m. and thereafter take his food. His father used to go out without taking food and in the afternoon used to take lunch. He was aged about 60 years. At the time of incident, he did not have any tempo. He purchased the tempo on 1812.1981 since then he is regularly using the tempo as taxi. He denied the suggestion that on the day of incident also he used to ply the tempo and had gone out of the village at the time of murder. He stated that in fact in those days, he did not know to drive the tempo. He denied that his father was done to death on 24.8.1981 at 5 a.m. in the morning at the tubewell and he was not there and thereafter the villagers had brought his dead body from the tubewell to his house on a cot. He further denied the suggestion that on the said day in the evening, the police had called him at police station and got a report written and he did not lodge any report at 12:30 p.m. in the afternoon. He further denied the suggestion that all the proceedings of the present case has been initiated by him at the instance of Sayeed Pradhan and all the witnesses have been falsely planted.

15. P.W. 2 Zafrul Haq in his deposition before the trial court has stated that on 24.2.1981 at about 11:30 a.m., Ahmad Ullah resident of village Boonda was murdered near the South of Mazar at a distance of 7-8 paces from the 'Goswar' of the deceased which was at a distance of 4 paces towards North. He was murdered by accused Anwar Ahmad, who shot him dead. The shot hit him on his chest and shoulder. The accused Rais Ahmad was standing with lathi near the accused Anwar Ahmad. Accused Rais Ahmad had not exhorted in his presence. The accused were quarreling and abusing and at that moment Ahmad Ullah came from the Eastern side of the lane and he had some conversation with the accused. Anwar Ahmad had fired shot at Ahmad Ullah, who had fallen and died instantaneously. His village is at a distance of one mile from the village where the incident had taken place. He was sitting at the doors of Sayeed Pradhan when the murder had taken place and he had witnessed the incident from there. He stated that along with him Sayeed Pradhan was also present and he had also witnessed the incident. The informant Nabi Ahmad witnessed the incident from his house. He further stated that in the year 1982, a case under section 325/147 I.P.C. was registered against him in which he had absconded. The said case was registered at police station Sarai Aquil. The notice of the said case was served to him in the year 1982 in jail. In 1981, a case was registered against him, Sayeed Pradhan and Bhaiya Lal, who are witnesses of the present case for the offence under section 302 I.P.C. which is still going on. In the said case, when he was in jail he was served with a notice of a case registered against him in the year 1964. In the case in which he was absconding, he was acquitted. In the year 1977, a case under section 107/112 was initiated against Mahboob Ullah in which Ahmad, Sayeed, Sunne and Achchey etc. were opposite parties. He did not tell the Investigating Officer that he was returning from Allahabad to the village when he witnessed the incident as the Investigating Officer had not asked him. He had gone to Allahabad two days prior to the incident from the same route. He had got some equipment of his tubewell repaired from the shop of one Ghani at G.T. Road, Allahabad and remained for two days at the house of his relative, namely, Khalid Zameer. There was a fault in his tubewell because a nut of it failed and he had got new nut of the same made in which he spent Rs. 7-8 but he was not given any receipt of the same by Ghani. Allahabad is 35 kms. away from his house. Sarai Aquil and Manauri is at a distance of 8-9 mile from his village. He may also get the said nut repaired from there also. He had gone to Allahabad for repairing of the said nut only. In his house there is his brother, nephew and sons, who used to take care of his house and other household work. He had left his house at 2 p.m. in the afternoon for the purpose for Allahabad and had reached at Allahabad at about 4 p.m. in the evening and he had gone to the shop of Ghani for repairing of the nut, who had asked him to come on the next date for taking the said nut, hence at 4 p.m. he went to his shop again but he had given the nut at 6 p.m. He stated that as he was getting late to come to his house he went to the house of his relative and stayed there. On the third day, after taking breakfast, he left the place at 8 a.m. in the morning from his relative's house for coming. After taking the bus from railway station reached Babupur at about 9:30 a.m. in the morning. The distance of village Boonda from Babupur is about two miles and within 45 minutes, i.e., about 10-10:30 a.m. at the outside of village Boonda at the river bank some persons made him with whom he had conversation for about half and hour. Thereafter, he reached the house of Sayeed Pradhan at 11:30 a.m. Thereafter within 10-15 minutes the murder had taken place. The river is about one mile from village Boonda and it was dried. It took 10-15 minutes to reach the house of Sayeed Pradhan from the river. On the day of incident, he had no work with Sayeed Pradhan and as the witness had seen him, hence he went to him in order to enquire whether he would be able to sent fodder for his animal or not. He had not disclosed the about the conversation which he had with Sayeed Pradhan to the Investigating Officer nor he had asked him about the same. The Investigating Officer had interrogated him 2-3 days after the incident when he was at his tubewell. He stated that he had two tubewells and had 20-25 bighas of agricultural field. He and his brother Zafrul Haq live together. He denied that they are having 16-17 bighas of land. The place where Ahmad Ullah was shot was visible from the place he was sitting and he had seen the incident in which the deceased received gun shot injury. He did not see the person, who had shot the deceased when Ahmad Ullah received injuries then he saw them but could not see the person, who had shot him and when he reached near Ahmad Ullah in the lane South of the house of Ghulam Hussain then Bhaiya Lal and Zamirul told him that it was Anwar Ahmad, who had shot dead the deceased and is running away and when he saw Anwar Ahmad already run away 300-400 yards towards South-East and he has only seen the back of the accused and had not chased him. He denied the suggestion that he was not present at the place of occurrence and had not seen the incident and because of being at the side of Sayeed he is falsely deposing against the accused. When the witness was cross examined and his attention was drawn towards the statement made by him on 31.10.1984 before the Court that he stated that accused Anwar Ahmad @ Nirale, who is present in the Court had shot dead the deceased then he stated that the said statement was given by him due to mistake and the correct fact is that he did not seen Anwar Ahmad firing shot. He denied the suggestion that on account of fear and influence of the accused he is not correctly deposing against them.

16. P.W. 3 Rizwan has stated before the trial court that on 23.8.1981 there was a quarrel between him and accused Rais Ahmad at his tubewell with regard to a lane in between his father Ahmad Ullah, who was at a distance of 1-1/1/2, arrived there. Rais Ahmad wanted to take water from the lane of his tubewell forcibly which was objected by him. Rais Ahmad come from his house after consuming liquor. Rais Ahmad started abusing him on which his father had slapped Rais Ahmad but the said witness did not assault Rais Ahmad. Thereafter, Rais Ahmad went to his house.

17. In his cross examination, the witness had admitted that Rais used to take water from his tubewell for irrigating his field and from his lane the water used to flow to their field. He had shown the drain to the Investigating Officer, who had also prepared the site plan about it. The lane was at a distance of 1-1/1-2 bighas from the tubewell. He had not disclosed the Investigating Officer that Rais Ahmad had consumed liquor and he cannot tell any reason for not stating the said fact to the Investigating Officer. The said incident was not witnessed by any one except his father. He again stated that when the incident was also witnessed by Rajjan Baniya and one Harijan. He denied the suggestion that such incident had not taken place and he is falsely deposing against the accused.

18. P.W. 4 Constable No. C/926 Preetam Yadav in his affidavit before the Court which is on record and assumed to be his statement has stated that he was posted as Constable in February, 1981 at police station Sarai Aquil. On 24.2.1981 from the place of occurrence he took the dead body of the deceased Ahmad Ullah after inquest and handed over to the doctor at mortuary Swaroop Rani hospital along with relevant papers on the next day from the police line Allahabad and handed over to the doctor on 25.2.1981 and further identified the dead body of the deceased and at about 2 p.m. the post mortem report along with sealed bundles of clothes was received by him which was deposited at the police station Sarai Aquil constable Mahipal Singh was also along with him.

19. P.W. 5 Hari Prasad Singh-the Investigating Officer of the present case has stated that he was posted as station Officer of police station Sarai Aquil between February 1981 to May, 1981. In his presence on the basis of a written report Ext. Ka-1 submitted by the informant on 24.2.1981 Head Constable Jeet Bahadur Singh had prepared the chik F.I.R. of the case in his writing and signature. He has proved the same as Ext. Ka-2. The same was also endorsed in the G.D. No. 20 at 12:30 p.m. on 24.2.1981 in his hand writing and signature which was proved as Ext. Ka-3. He was entrusted with the investigation of the case. He send S.I. Mohan Singh and two constables to the place of occurrence. The informant was present at the police station and his statement was recorded and thereafter he proceeded to the place of occurrence. When he reached the place of occurrence then he directed S.I. Mohan Singh to conduct the panchayatnama of the deceased which was conducted in his presence. The panchayatnama, challan nash, photo nash, letter to C.M.O., letter to R.I., sample seal were prepared and signed by S.I. Mohan Singh. As he was acquainted with his writing and signature as he worked with him, he proved the same as Exts.-Ka- 4 to 9. He recorded the statement of the brother of the informant, namely, Rizwan Ahmad, witnesses Mohammad Rais Ahmad Pradhan and Mushtaq Ahmad and prepared the site plan of the place of occurrence and proved the same as Ext. Ka-10. In his presence, S.I. Mohan Singh had recovered cartridges and tiklies which were sealed and recovery memo of the same was prepared by him in his hand writing and signature as Ex. Ka-11. The blood stained and plain earth were also collected and sealed in separate packets and recovery memo of the same were prepared and marked as Ext. Ka-12. The clothes of the deceased which was taken off during the panchayatnama was sealed and recovery memo of the same was prepared and marked as Ext. Ka-13 by S.I. Mohan Singh. He recorded the statement of witnesses of panchayatnama. S.I. Mohan Singh sealed the dead body and other police papers and handed over the same to Constable Preetam Singh for taking the same for post mortem. He further tried to trace out the accused by visiting their house but they could not be found there nor any recovery may be made from their house. He further recorded the statement of Zafrul and others on 25.2.1982. After completing the formalities he submitted charge-sheet against accused Rais Ahmad and against accused Anwar Ahmad @ Nirale as absconder on 17.5.1981 and proved the same as Ext. Ka-14.

20. In his cross examination he has stated that he reached the place of occurrence at 2:30 p.m. and he had interrogated the witnesses in front of the house of the informant at the place of occurrence, namely, Qadeer Ahmad, Yunus, Ghulam Hussain and Moosa and others but none of them have seen the incident. The said persons were residing near the place of occurrence. He denied the suggestion that the F.I.R. of the incident was not written on 24.2.1981 at 12:30 p.m. in the afternoon and further denied the suggestion that on 25.2.1981 he had called Nabi Ahmad-the informant to the police station thereafter got a report written and concocted the prosecution case. He further denied the suggestion that at the place of occurrence no blood was found nor tiklies were recovered. He further denied the suggestion that in fact the dead body was lying at the tubewell. He reached the place of occurrence and from there he got the dead body and falsely shown the same to be lying at the place of occurrence. He denied the suggestion that on 25.2.1981, he reached the place of occurrence as he received the information about the incident and thereafter he did the investigation of the case at his own whims. He stated that he reached the place of occurrence on 25.2.1981 he returned to the police station at 8:30 p.m.

21. P.W. 6 Dr. P.S. Pandit in his deposition before the trial court has stated that on 25.2.1981 he was posted as Medical Officer at T.B. Sapru Hospital, Teliarganj. At 2 p.m. in the afternoon he had conducted the post mortem of the deceased Ahmad Ullah and found following injuries on his persons:-

"1. Gun shot wound 1/4" x 1/4" x muscle deep on the left side chest 7 cm. below the nipple. No tattooing or singing was found around the wound. The edges were everted.

2. Gun shot wound 1/4" x 1/4" 4 cm. below injury no. 1. No singing or tattooing was present around the wound. The injury was everted.

3. Gun shot wound 1/4" x 1/4" on the right side chest, 3" below the nipple. It was a cavity deep wound. The injury was inverted. No singing or blackening present.

4. Gun shot wound 1/4" x1/4" on the right shoulder 7" below the neck. No singing blackening present. Injury was everted.

5. Gun shot wound 1/4" x 1/4" on the left forearm 2" below the elbow. The injury was ineverted. There were contusion marks around the wound in an area of 1/3". On the right side 4th and 5th ribs were fractured.

22. In the opinion of the doctor, the death was caused due to shock and hemorrhage as a result of ante mortem injuries. The deceased would have died instantaneously. The injuries were sufficient in the ordinary course of nature to cause death. It is possible that the deceased would have died on 24.2.1981 at about 11:30 a.m. He has proved the post mortem report as Ext. Ka-16.

23. In his cross examination he has stated that injury no. 3 was caused from front side because of which the pellets have entered into the body and injury no. 6 was shot from a distance because of which there was no blackening or singing and the said injury was also caused from front and not from the side or back. Injury nos. 1, 2 and 3 are the exit wound and injury no. 4 is also an exit wound and its entry wound is injury no. 3. Injury no. 5 has no concern with injury nos. 1 and 2. Injury nos. 3 and 5 may be caused by different shots and nor from one shot. The said injuries may be caused on 24.2.1981 from 5 a.m. to 5 p.m.

24. The trial court after going through the prosecution evidence and the defence version arrived at the conclusion that the prosecution has proved its case beyond reasonable doubt against the accused appellants hence convicted him for the offence in question. Being aggrieved by the same, the present appeal has been filed by the appellant.

25. Heard Sri Sudhir Mehrotra and Sri Mohammad Irteqa, learned counsel for the appellant, Sri J.P. Tripathi, learned A.G.A. for the State, perused the impugned judgment and order as well as the lower court record. Sri Jameel Ahmad Aazmi and Sri Rais Ahmad Ansari, learned counsel for the complainant is not present even in the revised reading of the list.

26. Learned counsel for the appellant submits that P.W. 1 Nabi Ahmad, who is the informant of the case and real brother of the deceased is said to have witnessed the incident and the trial court only on the basis of his testimony has convicted the appellant no. 2. The other eye witnesses of the occurrence, namely, Zafrul has turned hostile and has not supported the prosecution case as he failed to identify the actual culprit, who shot dead the deceased. He submitted that the evidence of P.W. 1 is not trust worthy as he is highly interested and partisan witness. He further submitted that the motive which has been suggested for the incident that a day prior to the present incident, i.e., on 23.2.1981 at 9:30 a.m. there was a quarrel between the brother of the informant, namely, Rizwan and accused Rais Ahmad at his tubewell with respect to a lane on which the deceased, who had arrived there slapped accused Rais Ahmad and asked him to leave the place on account of which the accused felt insulted and have come to his house and at that time the accused Rais Ahmad armed with lathi and accused Anwar Ahmad was armed with gun and the accused Anwar Ahmad @ Nirale shot a single fire from the gun which hit the deceased and he had fallen down and died whereas the deceased has received injuries on his chest as well as on his shoulder. He submitted that as the deceased has received as many as five injuries on his person which include injuries on his chest and shoulder and forearm, shows that he has not witnessed the incident as he has stated in his statement that a single shot was fired which goes to show that the incident had taken place in some other manner and not as stated by the prosecution. He has drawn the attention of the Court towards the evidence of P.W. 6, who has stated that the injuries which have been caused to the deceased is not a result of one shot whereas of different shots, hence the medical evidence also belies the ocular testimony. He further submtis that it appears from the evidence of P.W. 1 that the accused used to take water from the tubewell of P.W. 1 and the deceased since a very long time and on 25.2.1981 the quarrel which has taken place between Rais Ahmad and Rizwan Ahmad at the tubewell for taking water to the field of the accused is absolutely false incident just to create a motive for the crime in question. He submitted that the deceased was done to death at his tubewell in the early hours of the morning and none has witnessed the incident and the F.I.R. has been lodged at the instance of Sayeed Pradhan against the accused persons, who was having animosity with the accused thus he argued that the conviction and sentence of the appellant by the trial court is liable to be set aside and the appellant be acquitted.

27. Learned A.G.A. on the other hand vehemently opposed the argument of learned counsel for the appellant and submitted that the incident has taken place at 11:30 a.m. in the morning at the doors of the deceased and the appellant Anwar Ahmad @ Nirale has shot the deceased with his gun, who died on the spot and the incident was witnessed by his son P.W. 1 and by other witnesses, P.W. 2 Zafrul. The ocular testimony fully corroborates the medical report and he stated that the motive which has been suggested by the prosecution that a day prior to the incident there was quarrel between Rais Ahmad and Rizwan Ahmad-the brother of the informant and the son of the deceased at the tubewell and the deceased had slapped accused Rais and asked him to leave the tubewell. The accused Rais and his brother felt insulted and shot dead the deceased at the doors of his house and the trial court has rightly convicted and sentenced them for the offence in question.

28. We have gone through the evidence led by the proseution as well as by the defence and have perused the impugned judgment and order of the trial court along with record.

29. It is an admitted case that the incident has taken place on 24.2.1981 at 11:30 a.m. and the deceased died on account of gun shot injuries at the place of occurrence. The blood was found by the Investigating Officer along with cartridges and tiklies which goes to show that the incident has taken place on the date and time and at the place which has been suggested by the prosecution. Earlier to the present incident on 23.2.1981 at 9:30 a.m. there was quarrel between accused Rais Ahmad and son of the deceased Rais Ahmad at the tubewell with respect to a lane and the deceased, who was also present there had slapped the accused Rais Ahmad and asked him to leave the tubewell, who felt insulted and informed about the incident to his brother thereafter accused Rais Ahmad and Anwar Ahmad @ Nirale went to the house of the decease with lathi and gun and the accused appellant entered into a quarrel with the deceased and started abusing him which was objected by the deceased and the deceased was shot by accused Anwar Ahmad by his gun which hit him on his chest and shoulder and he fell down on the ground and died instantaneously. The incident was witnessed by P.W. 1 Nabi Ahmad, who was also present at the place of occurrence and he tried to save his father but because of the fear of the accused persons, who were armed with gun he could not resist and raised alarm on which other witnesses arrived at the place of occurrence and the two accused thereafter fled away. P.W. 1 in his evidence has stated that he has witnessed the incident and his father was shot by the accused Anwar with gun and his father after receiving gun shot injuries had fallen and died instantaneously. Blood was also found at the place of occurrence. He immediately after the incident had written a report and rushed to the police station and lodged the same at 12:30 p.m. in the afternoon. P.W. 5-the Investigating Officer has stated that the F.I.R. was registered by the Head Constable on the basis of written report submitted by P.W. 1 at the police station about the incident which was also endorsed in the G.D. on the same day and he proceeded with S.I. Mohan Singh and others to the place of occurrence after recording the statement of P.W. 1 at police station, he found the dead body of the deceased lying at the place of occurrence. He got the panchayatnama of the same prepared by Mohan Singh, who after completing the formalities of panchatnama prepared and handed over the dead body to the police constable for being taken for postmortem. The recoveries made of blood stained and simple earth from the place of occurrence and the cartridges and tiklies which were recovered from the place of occurrence and memo was prepared by Mohan Singh, goes to show that the place of occurrence as has been suggested by the prosecution stands established. The evidence of P.W. 1 fully corroborates the prosecution case which corroborated by the post mortem report of the deceased, who has received gun shot injuries on his person. As per the opinion of the doctor the deceased died on account of ante mortem injuries. So far as P.W. 2 Zafrul is concerned, though in his cross examination he had stated that he did not see the actual assailant, who had shot dead the deceased but in his examination-in-chief he has fully supported the prosecution case as stated by the P.W. 1 and stated the it was the appellants, who shot dead the deceased on the date and time of the time but he was won over by the accused-appellant and he stated that he did not see the person, who shot at the deceased and he resiled from his earlier statement in which he has stated that it was the appellant, who shot dead the deceased.

30. We find no reason to disbelieve the prosecution case as well as the evidence of P.W 1 and 2 in the examination-in-chief before the trial court wherein both of them have stated that it was the appellant, who shot dead the deceased. There appears to be no doubt to disbelieve the evidence of P.W. 1 simply because he is the son of the deceased as nothing has been elucidated from his cross examination which could compel this Court to disbelieve his evidence or doubt his presence at the place of occurrence. As it is a case of direct evidence, the motive looses its significance. Thus, the argument of learned counsel for the appellant regarding the credibility and testimony of P.W. 1 and casting doubt about his presence at the place of occurrence is not at all acceptable by this Court in view of the discussion made above with respect to the evidence of P.W. 1. The incident has taken place in broad day light at 11:30 a.m in the morning and the ocular testimony fully corroborates the medical evidence. The finding recorded by the trial court in convicting and sentencing the appellant for the murder of the deceased cannot be said to be faulted and the trial court has rightly come to the conclusion that it was appellant, who shot dead the deceased and the prosecution has proved its case beyond reasonable doubt against him.

31. Thus the impugned judgment and order of the trial court convicting and sentencing the appellant is hereby affirmed.

32. The appeal lacks merit and is hereby dismissed.

33. The appellant is said to be on bail. He shall be taken into custody forthwith to serve out the sentence as has been awarded by the trial court.

34. Let a copy of this order along with the record be sent to the trial court concerned for necessary information and its compliance.

(Dinesh Kumar Singh-I, J.)       (Ramesh Sinha, J.)
 
Dated:-30.05.2019
 
Shiraz.